67 Ga. 753 | Ga. | 1881
By the charter granted to the city of Cartersville, it is provided, “that the commissioners of said city shall have power and authority to pass all necessary rules, regulations and ordinances as they may deem advisable in relation to dogs, hogs, horses, mules and any other stock straying at large within its corporate limits. ”
It is also provided by the amended charter, “ that said mayor and aldermen shall have power to remove nuisan
Again, that “ said mayor and aldermen shall have power to pass all laws and ordinances that they may consider necessary to the peace and good order, health, prosperity, comfort and security of said city and citizens thereof, not inconsistent with the constitution and laws of the state and the United States. ”
Under these clauses in the charter an ordinance was adopted to impound all hogs that were found straying at large in the streets, and, after advertising them five days, they were to be sold, unless the owner came forward, claimed them and paid the charges thereon.
Certain hogs of the defendants in error, who were nonresidents, were found on the streets and impounded. After taking other legal process to stop the sale, they filed their bill setting up the facts stated, denying the right of the city government to pass and enforce such an ordinance, and praying an injunction, and that on the final hearing a perpetual decree be granted against all attempts to execute or enforce said ordinance, and that it be declared absolutely null and void.
The defendant demurred —
* (i.) Because of an ample common law remedy on the part of the complainants.
(2.) Because defendant had the right to pass and enforce the ordinance complained of.
(3.) Because of a misjoinder of parties.
The bill was, by leave of the court, amended by striking one of the defendants therefrom. The chancellor then overruled the demurrer upon the other grounds, and granted the injunction as prayed for, which ruling is assigned as error.
Was the ordinance, then, which is the.question in the case, an exercise of unauthorized power?
Whatsoever may have been ruled elsewhere touching the grant of the power, and the disputes arising thereun
The streets of an incorporated city or town are reserved and set apart for the public use; no.individual can, therefore, appropriate them to his private use. If he has the right to turn six hogs into the public streets to fatten, he has the right to turn six hundred, for the legal principle is not governed by the number but by the right. Individuals have no more legal right to claim pasturage of the public for their hogs than they have swill or corn. Many of the best and highest authorities on this subject go to the extent of holding that where a general police power is granted, or power to abate nuisances, etc., is given, even they confer the right to pass and enforce such an ordinance. Dillon on Mun. Cor., 3d Ed., §402; 1 La. An., 383; 30 Ill., 459; 14 Gray, (Mass.) 52; 9 Allen, (Mass.) 266; 8 B. Mun., (Ky.) 433 ; 32 Texas, 258.
We know of no- authority, nor has any been cited, where the express power is given that it may not be exercised. Neither has any been shown, and we apprehend none can be, that gives a non-resident, non-taxpaying person the enjoyment of a privilege or right which is denied to a resident, taxpaying person.
The principle of forfeiture discussed on the argument is not in this case.
Our judgment is that the ordinance is authorized and lawful; that if the defendants in error had any right whatever in the premises, they had ample common law remedies ; that the granting of the injunction was error, anvd that the judgment must be reversed on both grounds.'
Judgment reversed.